Jay Cohen v. Tour Partners, LTD., Dennis J. Wilkerson, and Eighteen Investments, Inc. ( 2015 )


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  • ACCEPTED 01-15-00705-CV FIRST COURT OF APPEALS HOUSTON, TEXAS 12/8/2015 1:41:31 AM CHRISTOPHER PRINE CLERK NO: 01-15-00705-CV IN THE FILED IN 1st COURT OF APPEALS FIRTST DISTRICT COURT OF APPEALS OF TEXASHOUSTON, TEXAS AT HOUSTON, TEXAS 12/8/2015 1:41:31 AM CHRISTOPHER A. PRINE Clerk JAY COHEN, Appellant v. TOUR PARTNERS, LTD., DENNIS J. WILKERSON, AND EIGHTEEN INVESTMENTS, INC. Appellees On appeal from the 55th Judicial District Court of Harris County, Texas Trial Court Cause No. 2013-68181 APPELLANT’S OPPOSED FIRST MOTION FOR 25 DAY EXTENSION OF TIME, FILED CONTEMPORANEOUSLY WITH APPELLANT’S BRIEF TO THE HONORABLE JUSTICES OF THE COURT OF APPEALS: Pursuant to Texas Rule of Appellate Procedure 38.6(d), Appellant files this his First, Opposed, Motion for 25-day Extension of Time, which is filed contemporaneously with his Appellant’s Brief. This motion complies with Rule 10.5(b) and, in support thereof Appellant respectfully shows the Court as follows: 1. This is an appeal from the final summary judgment, which became final on May 20, 2015, in favor of Third Party Plaintiff Tour Partners, Ltd., and Crossclaim Defendants Dennis J. Wilkerson, and Eighteen Investments, Inc. and against Third Party Defendant Mr. Cohen. The now-final judgment was interlocutory when signed by the 55th Judicial District Court on January 23, 2015, but became final when the only remaining claims in the case were ordered non- suited by the trial court’s May 20, 2015 order. 2. Mr. Cohen was joined as a third party by Tour Partners, Ltd. after the discovery period had expired along with other scheduling deadlines. The trial court refused to extend discovery and denied and refused to rule upon Mr. Cohen’s motions to continue summary judgment and trial to allow him to participate in the discovery process. Mr. Cohen is also appealing from the trial court’s denial of his motion for new trial and denial and refusal to rule upon his motions to continue and to issue a new docket control order and re-open discovery. 3. The original deadline for Appellants Brief was Friday, November 13, 2015. Appellees have filed a motion to dismiss for want of prosecution and the Court provided notice that no Appellant’s brief had been filed. Appellant seeks a 25-day extension of time for filing his Appellant’s Brief, which has been filed contemporaneously with this motion for extension. Appellant began filing this motion and the accompanying Appellant’s brief on December 7, 2015 but experienced computer difficulties, which were eventually resolved shortly before midnight. As a result, in an abundance of caution, Appellant is requesting an extension through December 8, 2015. 4. This is Appellant’s first motion for an extension of time to file Appellant’s brief. Appellant brings this motion pursuant to Texas Rules of Appellate Procedure 38.6(d) and in compliance with Rule 10.5(b). 5. Appellants’ counsel George May is recovering from a health crisis, and dealing with the side effects of medication, which has delayed unrelated surgery that is now scheduled for January 7, 2016. Mr. May first fell ill while in Amarillo for oral argument before the Amarillo Court of Appeals on September 1, 2015 and has, until recently, been forced to limit his work schedule. Appellant’s counsel George May was unable to complete Appellant’s brief by the November 13, 2015 deadline due to family matters and his illness and treatment, which temporarily rendered him unable to complete all his professional obligations and to request that his colleague Lori Twomey assist with the tasks he was unable to complete. Ms. Twomey has undertaken the tasks her schedule would permit but was unavailable to assist Mr. May in this appeal. 6. The professional obligations Mr. May was unable to delay or delegate, include the following: (1) October 14, 2015 discovery response deadline in Cause 13CV1392; Amelia V. Kelly v. Matthew D. Wiggins, Jr. and D.L. Hammaker; th in the 122 District Court of Galveston County, Texas; (2) October 15, 2015 court ordered mediation in Adversary Case No. 12- 3453; Anderson v. Brundage; in the United States District Court for the Southern District of Texas, Houston Division; (3) Attending and presenting general counsel report at October 19, 2015 annual shareholder’s meeting for corporate client; (4) October 29, 2015 non-jury trial in 2009-19162; Crosby Independent School District v. Celestin Chas, et al; in the 80th District Court, Harris County, Texas; (5) October 30, 2015 formal Appraisal Review Broad hearing in tax valuation protest; (6) November 15 mediation in Cause No. 386,934-401; Thompson v. Estate of Joekel; In Probate Court No. 3 of Harris County, Texas; (7) Preparation for three (3) scheduled December non-jury trials in several tax foreclosure lawsuits in Harris County; the 268th District Court of Harris County, Texas; and (8) Hearing in Cause No. 13-CV-1392 in the 122nd District Court of Galveston County, Texas; (9) Reply brief due in Case No. 14-15-00443-CV in the Fourteenth Court of Appeals at Houston, Texas; and (10) Various other time-sensitive matters for clients. 7. Appellant does not seek this extension for the purposes of delay but only so that justice may be served. Appellant’s missing the original deadline was not due to conscious disregard but a result of counsel’s illness and the temporary work limitations described above. The extension requested is not excessive and extending the original deadline for Appellant’s brief will not otherwise prejudice Appellees. PRAYER For all these reasons, Appellant respectfully requests a 25-day extension of time for filing its Appellant’s Brief from Friday November 13, 2015 to Tuesday, December 8, 2015. Respectfully submitted, TWOMEY MAY, PLLC /s/ George F. May/ _______________________________ George F. May State Bar No. 24037050 george@twomeymay.com 2 Riverway, 15th Floor Houston, Texas 77056 (713) 659-0000 - Telephone (832) 201-8485 - Facsimile Dated: December 8, 2015 CERTIFICATE OF CONFERENCE I do hereby certify that I Appellees counsel has indicated that Appellees are opposed to any extension of time and this motion is filed as opposed. /s/ George F. May/ _______________________________ George F. May CERTIFICATE OF SERVICE As required by Texas Rule of Appellate Procedure 6.3 and 9.5(b), (d), (e), I certify that I have served this document on counsel for Appellee as listed below on December 8, 2015 as follows: Walter J. Cicack wcicack@hmgnc.com HAWASH MEAD GASTON NEESE & CICACK, LLP 2118 Smith Street Houston, Texas 77002 Telephone: (713) 658-9001 Facsimile: (713) 658-9011 Attorneys for Appellees By (check all that apply) personal delivery mail commercial delivery service X fax, email, or electronic service /s/ George F. May/ George F. May Date: December 8, 2015

Document Info

Docket Number: 01-15-00705-CV

Filed Date: 12/8/2015

Precedential Status: Precedential

Modified Date: 9/30/2016